US v. Charles Ellis

Filing 920081126

Opinion

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-5117 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CHARLES ELLIS, Defendant - Appellant. Appeal from the United States District Court for the Southern District of West Virginia, at Parkersburg. Joseph R. Goodwin, Chief District Judge. (6:06-cr-00037-1) Submitted: November 12, 2008 Decided: November 26, 2008 Before WILKINSON, MICHAEL, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Barron M. Helgoe, VICTOR VICTOR & HELGOE LLP, Charleston, West Virginia, for Appellant. Charles T. Miller, United States Attorney, Steven I. Loew, Assistant United States Attorney, Charleston, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Charles sentence imposed Ellis for appeals his convictions purchases and of 324-month firearms conducting straw through four women in the Parkersburg, West Virginia, area so he could resell the firearms for profit in Boston. convicted of tampering with two of the witnesses. He was also On appeal, Ellis argues that his right to a fair trial was violated by improper testimony and a remark by the prosecutor in closing statements. He also contends that his sentence is unreasonable. Finding no error, we affirm. Ellis did not make any contemporaneous objections to any of the evidentiary errors alleged on appeal. errors are subject to plain error review. Olano, 507 U.S. 725, 731-33 (1993). Therefore, the United States v. Four conditions must be met before this court will notice plain error: (1) there must be error; (2) it must be plain under current law; (3) it must affect substantial rights, typically meaning the defendant is prejudiced by the error in that it affected the outcome of the proceedings; and (4) the error seriously affected the fairness, integrity, or public reputation of judicial proceedings. 732-37. Ellis first argues that the testimony of Agent Michael Turner that five guns were found at crime scenes and calling the guns "crime guns" was highly 2 prejudicial, inflammatory, and Id. at unnecessarily Ellis contends tied that him to at least to four a unspecified character crimes. and The this amounted attack deprived him of his Fifth Amendment right to a fair trial. Government maintains that the straw purchases and resales in Boston were criminal acts, making the firearms "crime guns," and further that, because at least four firearms were recovered from crime scenes, they were in fact accurately characterized as crime guns. We conclude that it was not error for Agent Turner to refer guns." to the firearms recovered from crime sites as "crime Ellis does not contest that the firearms were recovered from crime scenes and there was no testimony that Ellis was involved associated particularly in any overt the acts related Therefore to the crimes is the no later error, with one guns. there which "seriously affects fairness, United integrity or public reputation of judicial proceedings." States v. Brewer, 1 F.3d 1430, 1435 (4th Cir. 1993). Next, Ellis contends that the testimony of Delano Gaskins, a former inmate with Ellis, that he decided not to traffic in guns with Ellis because he had "changed around by the grace of God" was unduly prejudicial and improperly used to bolster the credibility of this Government witness who was a convicted felon. Ellis seeks a new trial to cure the 3 misconduct. The Government replies that any error is harmless, if any error resulted at all. A prosecutor may neither vouch for nor bolster the testimony of a Government witness in arguments to the jury. United States v. Sanchez, 118 F.3d 192, 198 (4th Cir. 1997). Vouching personal generally belief in occurs the when the prosecutor of a indicates a credibility witness. United "While States v. Lewis, 10 F.3d 1086, 1089 (4th Cir. 1993). improper vouching must generally come from the prosecutor's own mouth, a prosecutor's from solicitation of assertions may also of be trustworthiness government witnesses impermissible vouching." Id. (citing United States v. Piva, 870 F.2d 753, 760 (1st Cir. 1989)). Impermissible vouching and bolstering do not necessarily mandate retrial, however. Instead, "[t]he relevant question is whether the prosecutor['s] comments so infected the trial with unfairness as to make the resulting conviction a denial of due process." quotation marks omitted). Sanchez, 118 F.3d at 198 (internal In making this determination, we examine "(1) the degree to which the comments could have misled the jury; (2) whether the comments were isolated or extensive; (3) the strength of proof of guilt absent the inappropriate comments; and (4) whether the comments were deliberately made to divert the jury's attention." Id. 4 The Gaskins Assistant he United to States Attorney (AUSA) asked he whether agreed Ellis's suggestion that illegally sell guns. Gaskins simply replied, "[n]o." The AUSA then asked, "[w]hy not?" answer. The Government did not linger over his Nor did the AUSA refer to the answer in his closing The testimony does not implicate impermissible statement. bolstering requiring remand. The remark was isolated, did not mislead the jury as to relevant facts, was slight compared to the rest of the evidence, and does not appear to have been deliberately elicited to divert the jury's attention from Gaskins' status as a felon. See Sanchez, 118 F.3d at 198. Therefore there was no error, plain or otherwise. During closing, the AUSA stated that the women who purchased firearms had not purchased firearms since the straw purchases--a fact not in the record. Ellis contends that this Although it was a was testifying to facts not in evidence. short statement, Ellis argues it was a broad assertion, which tended to mislead the jury. was no contemporaneous the fundamental Ellis states that, although there made of to the the trial comment, because it it objection fairness affected involved the five strongest witnesses against him. A infect[] the prosecutor's trial with improper unfairness closing as to argument make the may "so resulting conviction a denial of due process." 5 United States v. Wilson, 135 F.3d 291, 297 (4th Cir. 1998) (quoting Darden v. Wainwright, 477 U.S. 168, 181 (1986)) (internal quotation marks omitted). In determining whether a defendant's due process rights were violated by a prosecutor's closing argument, this court considers whether the remarks were, in fact, improper, and, if so, whether the improper remarks so prejudiced the defendant's substantial rights that the defendant was denied a fair trial. Id. We conclude that even if the AUSA's isolated remark was improper, it did not so prejudice Ellis's substantial rights as to deny him a fair trial. Although the remark was about facts not in evidence and involved the witnesses who purchased firearms for Ellis, it did not address a crucial element of the charges unsupported by other evidence. Considering the isolated remark and the totality of the evidence as a whole, the remark was not unduly prejudicial. Finally, Ellis argues that together the crime guns testimony, Gaskins' testimony, and the AUSA's allegedly improper remark in closing resulted in cumulative error that would require a new trial. However, no error resulted and therefore the cumulative error analysis is not necessary. Ellis argues that his sentence is procedurally unreasonable because the district court imposed it prior to the Supreme Court's decision in Gall v. United States, 128 S. Ct. 6 586, 597 a (2007), and that the to court did not fully consider on each whether sentence closer the statutory minimums count, which would require a variance far below the low end of the Guidelines range, was reasonable. Ellis contends that the court abused its discretion by presuming reasonableness of the Guidelines range. A sentence is reviewed for abuse of discretion, Gall, 128 S. Ct. at 597, with the review encompassing both procedural soundness and substantive reasonableness. Id. In Gall and in Kimbrough v. United States, 128 S. Ct. 558 (2007), the Supreme Court clarified the sentencing judge's authority to impose a sentence outside the Guidelines range "based solely on the judge's view that the Guidelines range fails properly to reflect 3553(a) considerations." Kimbrough, 128 S. Ct. at 575 (internal quotation and citation omitted). Ellis was sentenced before Gall and Kimbrough were decided, so the district court did not have the benefit of those decisions. failing to Either consider treating the the Guidelines factors as mandatory or 3553(a) adequately would constitute a "significant procedural error." at 597. Gall, 128 S. Ct. However, in this case, after stating its belief that the Guidelines range was too severe, the court went on to impose a sentence three range. years below in 7 the the 360-month record low end of the the Guidelines Nothing indicates that court believed Ellis that claims it could the not court vary further downward. applied a Although that erroneously presumption of reasonableness to the Guidelines range, it varied downward and there is no indication that the court was unaware of the applicable statutory minimum sentences. court considered the 3553(a) factors in Finally, the fashioning the sentence. We therefore find that Ellis has not demonstrated procedural error. We therefore affirm the convictions and sentence. We deny Ellis's pro se motion to file a pro se supplemental brief. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 8

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